Developing countries are expressing deep frustration at the attempts by wealthy nations to dissolve the Kyoto Protocol — the world's only existing international legal instrument to cut global warming pollution.
"What emerged [at climate talks in Barcelona Nov. 2-6] is that most developed countries want to kill KP and migrate to a lower-grade agreement," said Lumumba Stanislaus Di-Aping, the Sudanese chair of the G-77 plus China.
The implications of this could be serious.
Contrary to popular belief, the Kyoto Protocol does not expire in 2012. A Copenhagen climate agreement in December was originally supposed to build on the existing legal treaty — not supplant it.
If nations pull off a great escape from Kyoto, observers predict a legal gap in the architecture of the world's climate regime.
"The Kyoto Protocol is the only legally constituted working model we have of international commitment and cooperation to reduce greenhouse gases. And you don't saw off the branch you are sitting on," said UN climate chief Yvo de Boer.
With a legally binding Copenhagen treaty dead in the water, this is "no time to reinvent the wheel," de Boer said. "There is a strong sense that the Kyoto Protocol must continue."
The 'Post-Kyoto' Myth
It is often said that the Kyoto Protocol, now in its 12th year, will expire in 2012. That's only half true.
In 1997, 37 developed countries, called the Annex I Parties, agreed to slash emissions by an average target of 5 percent below 1990 levels over a period of four years, beginning in 2008.
This commitment — and only this — will end in 2012. All the other vital provisions of the Kyoto Protocol, including carbon market and international compliance measures, are expected to remain in full force.
For almost four years, the 184 parties of the Kyoto Protocol have been hashing out new targets for rich countries for the treaty's next commitment period.
These were supposed to be finalized in 2009, to ensure no gap between the two commitment periods. Final figures are still far away. The poor want the rich to commit to a 40 percent cut below 1990 levels by 2020. Current pledges are about a quarter to a third of that.
"We already expected that in [Barcelona] the final figures would have been made available so that these figures could be endorsed in Copenhagen," said Martin Khor, executive director of the South Centre, a Geneva–based research group that provides support to 51 developing nations.
"Unfortunately, [developing country] frustration could be carried over to Copenhagen," Khor said.
Two Tracks, Zero Progress
The United States made it clear it will not become a party to the Kyoto Protocol — ever.
To force its hand on the negotiations, the world agreed at the UN climate summit in Bali in 2007 that climate talks would proceed along two parallel tracks on the road to Copenhagen.
One would be for the 184 nations that signed the Kyoto Protocol. The other would be a broader negotiating track for all 194 parties to the UN Framework Convention on Climate Change (UNFCCC) — the U.S. included.
The goal: to get rich nations that are not parties to Kyoto to make "comparable efforts" to those that are.
The original end result was for the two-track approach to create two separate outcomes in Copenhagen which would be legally distinct.
Things have changed.
Several Annex I Parties, namely the EU, Japan and Australia, are now arguing for the two tracks to merge into a single, legally binding international treaty. The new deal would bring on board the U.S. and supposedly see greater commitments from the big polluters in the developing world.
Claiming that time is short, rich nations are packaging this new outcome as a political pledge — not a legal one. It would be sealed in Copenhagen and worked into a new treaty within one year, according to some claims.
Some observers see this push for a single outcome as a means to force certain poor nations to take on binding emission reduction commitments, like the rich. Others claim it is a way for Annex I Parties to downgrade, or even get out of, their legally binding Kyoto commitments.
"We have seen countries like the European nations, Japan, Australia, New Zealand, Canada, actively or passively seeking to ditch their emission targets under the Kyoto Protocol," said Tom Picken, a campaigner for Friends of the Earth International England.
"They are tearing down an existing legally binding instrument, which has taken years of negotiations to establish in attempts to wriggle out of their responsibility to cut their own emissions first and fastest."
Architecture of Climate Deal: Up In the Air
Overall, what emerged in Barcelona was a picture of total confusion over the future architecture of a carbon regulation regime, a pointer towards even greater difficulties in Copenhagen.
"It's really astounding that at this point of the negotiations [the nature and form of the outcome] is what we're discussing," said Angela Anderson, director of the Climate Change Program at the U.S. Climate Action Network.
Complicating talks is the Obama administration's so-called "implementing proposal."
Called "pledge and review" in policy circles, the plan calls for countries to come up with climate policies domestically and then bring them to the international community for review.
"It makes enforcement only as strong as the domestic system. For the US this system happens to be quite strong but this is not necessarily so in other countries. This approach would eliminate the ability of the international community to respond if there is a problem."
This isn't the first time "pledge and review" has been put on the table.
As Anderson explained, when Kyoto was being negotiated, the concept of "pledge and review" was introduced as a way to strengthen countries' commitments to emissions reductions. It was rejected by the parties as "not being sufficient to address the challenge" and not "accountable enough to produce emissions reductions needed," she said.
Anderson added that Barcelona was the week the world should have taken "pledge and review" off the table. That did not happen.
No Kyoto, No Deal
During the Barcelona talks, developing countries "made it very clear" they would not accept this "climb down of the climate regime," which they see as a planned killing of the Kyoto Protocol, Khor said.
"Developed countries have to make clear they will remain in KP and seriously negotiate in Copenhagen a second commitment period that starts in 2013 for further emissions reductions," he added.
In Barcelona, the Africa Group walked out of talks after developed countries failed to attempt to conclude work on CO2 cuts in the Kyoto Protocol track. The world may see a repeat of this next month in Copenhagen.
A Third World Network analysis warned that Africa "would stand strongly" against any attempts by the rich to reach an agreement which could "in any way result in the Kyoto Protocol being superseded or made redundant."
Whether this threat will infuse the remaining negotiations with new energy or bring them to a complete halt remains to be seen.
"If there will be any failure there it's not because of lack of attempt and efforts from our side," Di-Aping said on behalf of the G-77 plus China.